Saturday, December 5, 2015

The Second Amendment is not a Bar to Reasonable Gun Regulation (The American people are the problem)

Yet again another mass murder in the US and yet again another round of calls for gun control

regulation followed by yet again claims that the Second Amendment bars any legislative action. This has led some to call for a constitutional amendment repealing or modifying the Second Amendment. The reality is that there is no need to amend the Constitution. Congress and the states have sufficient constitutional power to act if they want. The issue is not the Constitution, or even the NRA. Instead it is political will and resolve...among the American people.Some thought the debate and public opinion on guns would have changed after 20 young children and six adults were slaughtered at Sandy Hook Elementary School. A few states acted but little changed. The NRA in typical fashion said the solution was more guns. Now a terrorist attack in San Bernardino kills 14 and the NRA is in the position of defending policies that make it easy for terrorists to get assault rifles. The ludicrousness of their positions should be enough to discredit them and their lobbying power. But it will not be.The NRA has argued that the solution to gun violence is to prevent the mentally ill from getting guns. This assumes all mentally ill people are violent and those who are sane are not. Our prisons are full of lots of people who use guns and commit crimes and the law has deemed them sane. There are millions of people in America will mental illness problems and few are violent. But even is preventing the mentally ill from obtaining guns were the solution, without universal background checks that policy is impossible to enforce. But this fact does not really matter.Claiming that everyone should be armed and that we can defend ourselves is false. It reeks of images of the shootout at the OK Corral or it assumes abilities to respond that few people have. Go talk to the police or those in the military about how much training it takes to use a gun. And think about also how much criticism there is even now regarding police use of deadly force and it should be obvious that more guns are not going to make us safer. But this fact does not really matter.It would perhaps be easier to refute the NRA’s claims but it bullied Congress yet again in July 2015 into preventing the Center for Disease Control from researching gun violence. But there is research from outside the US that examines gun violence that challenges claims that guns make us safer. But the facts from this research do not really matter.And of course the NRA can bring out its biggest weapon–invoking the Second Amendment. Advocates of gun control can whine to their hearts content about the Second Amendment but the reality is that it exists. Moreover, while many might argue the Supreme Court was wrong in its 2008 D.C. v. Heller opinion where a majority ruled that the Amendment protected an individual right to bear arms, the reality is that this is what the Court said. But it is also important to recognize something else about that opinion–the Court did not rule that all gun regulations are unconstitutional. As the Court declared:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Even in Heller the Court recognized that limits on who could own a gun, where and when, and the types of guns permitted could all be enforced. Case law before and after Heller have upheld bans on guns in schools, religious institutions, and public buildings. Regulations banning specific types of guns are permitted, and rules governing sales have too been upheld. Probably the only law that would not be constitutional would be a flat ban on personal possession of a gun for personal safety in the home. Beyond that, most regulations are constitutional. Otherwise, no one has a constitutional right to own an atomic bomb.The point is that the Second Amendment is not a legal bar to gun regulation. The problem is political will. There is simply not enough political will in this country to act. Calling for a constitutional amendment is foolish. If there was enough political will to pass a constitutional amendment there would be enough political will to enact meaningful legislation to control gun violence.Whatever the facts are about guns, they really do not matter. Facts are not issue here. It is even more than the pure lobbying power and intimidation of the NRA that is at issue. Yes they hide behind the Second Amendment and cowboy myths of American rugged individualism to prevent the regulation of guns. They use fear of crime, political imagery, and the power of money, lobbying, and influence to prevent politicians from acting. But the NRA has millions of members. The NRA and its supports are geniuses–they have figured out how to mobilize divided public opinion, gerrymandered safe political districts, and other tools of influence to prevent meaningful gun regulation. Our gun policies are a symptom of a grid locked political system and public opinion which is simply divided. Until such time as the public is act all the facts in the world will not matter.

1 comment:

The problem is political will, not the NRA power. Most NRA members do favor more regulation, but most NRA money comes from gun and ammunition manufacturers , not their members. The NRA uses that money to prevent regulation of arms of any kind, to bribe members of congress through campaign donations and to propagandize the public with lies.

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.